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CIRCUIT COURT OF
COOK COUNTY, ILLINOIS
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
CHANCERY DIVISION
COUNTY DEPARTMENT, CHANCERY DIVISION
CLERK DOROTHY BROWN
FREDDY MARTINEZ,
Plaintiff,
v.
CHICAGO POLICE DEPARTMENT,
Defendant.

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2014 CH 15338
Hon. Kathleen Kennedy

PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS


The legislature and courts of this state have consistently and repeatedly made clear that
left unchecked, government will operate in secrecy to the detriment of the public. Efforts by
government generally, and the CHICAGO POLICE DEPARTMENT specifically, to hide
information from the public based on conclusory affidavits and expansive interpretations of
FOIA exemptions have been firmly and loudly rejected by reviewing courts and lawmakers
alike. Despite the overwhelming weight of authority establishing these principles, CPD asks this
Court to dismiss this case, without the opportunity for any discovery, on the basis of generic,
one-size-fits-all affidavits and in derogation of the requirement that exemptions be read narrowly
and in light of the statutory presumption of disclosure.
It falls to this Court to uphold the important principle that access to information under
FOIA is necessary to enable the people to fulfill their duties of discussing public issues fully
and freely, making informed political judgments and monitoring government to ensure that it is
being conducted in the public interest. 5 ILCS 140/1. While CPD, the FBI, and Harris
Corporation summon the frequent bogeymen of national security and terrorism, this Court
may not and must not accept these bare assertions, which are devoid of supporting detail,

contradicted by a wealth of public information and expert testimony, and made before
MARTINEZ has had any opportunity to conduct discovery to test the veracity of the claims. It is
not in spite of, but especially because of, the nature of the surveillance at issue in this case and
the possibility of abuse by CPD (a department with a long history of illegal and unconstitutional
surveillance), that these principles of transparency must be upheld.
I.

LEGAL STANDARDS

A. Motions to Dismiss Under 2-619


A Section 2-619 motion to dismiss is a drastic means of disposing of litigation and
should be allowed only when the right of the moving party is clear and free from doubt. Levine

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v. Ebi, LLC, 2013 IL App (1st) 121049, 19 (reversing dismissal order). A Section 2-619
motion requires that the movant admit the plaintiffs well-pled allegations and all reasonable
inferences from those allegations. McMackin v. Weberpal Roofing, Inc., 2011 IL App (2d)
100461, 19. The motion must be denied where there is a genuine issue of material fact. E.g.,
Springfield Heating and Air Conditioning, Inc. v. 3947-55 King Drive at Oakwood LLC., 387 Ill.
App. 3d 906, 909 (2009). All evidence and pleadings must be taken in the light most favorable
to the non-movant. E.g., McMackin, 2011 IL App (2d) 100461, 19. Where the relevant facts
are solely within a defendants knowledge, a complaint which is as complete as the nature of
the case allows is sufficient, and discovery should be permitted. Yuretich v. Sole, 259 Ill. App.
3d 311, 313 (1994) (reversing order granting motion to dismiss).
B. Freedom of Information Act
The General Assembly and Illinois courts have long recognized that government secrecy
is rarely appropriate and often abused:
We are not surprised that governmental entities, including the United States
Attorney generally prefer not to reveal their activities to the public. If this were
not a truism, no FOIA would be needed. Our legislature enacted the FOIA in
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recognition that (1) blanket government secrecy does not serve the public interest
and (2) transparency should be the norm, except in rare, specified circumstances.
The legislature has concluded that the sunshine of public scrutiny is the best
antidote to public corruption, and Illinois courts are duty-bound to enforce that
policy.
Better Govt Assn v. Blagojevich, 386 Ill. App. 3d 808, 818 (2008) (requiring disclosure of
federal grand jury subpoenas).
Because of this truism, the FOIA statute and interpreting caselaw impose a demanding
standard on public bodies seeking to keep records from the public, no matter what the exemption
or the nature of the issues. First, every public record is presumed by law to be open to the
public, and so a public record may only be withheld if a specific statutory exemption applies and

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is proven by clear and convincing evidence. 5 ILCS 140/1.2; Day v. City of Chicago, 388 Ill.
App. 3d 70, 73 (2009) (reversing trial court order granting motion to dismiss and collecting cases
setting forth demanding standard to withhold records). Second, a public body asserting an
exemption must provide a detailed justification for its claimed exemption, addressing the
requested documents specifically and in a manner allowing for adequate adversary testing. Id. at
74 (quoting and citing Ill. Ed. Assn. v. Ill. State Bd. of Ed., 204 Ill. 2d 456, 464 (2003)). Public
bodies may not treat exemption language as some talisman, the mere utterance of which
magically casts a spell of secrecy over the documents at issue. Rather, the public body can meet
its burden only by providing some objective indicia that the exemption is applicable under the
circumstances. Id. at 75. In Day, for example, the Illinois Appellate Court reversed the trial
court for accepting inadequate affidavits from multiple CPD officials:
The three affiants also fail to explain how disclosure of any of the documents at
issue would specifically obstruct the remaining investigation of Irvings murder.
It is impossible to tell from the affidavits whether the investigation into aspects of
the crime other than Mr. Days arrest and conviction is actually pending, as
required by section 7(1)(c)(i). ***
Although Lieutenant Gibson said seemingly innocuous information may prove
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valuable to an at-large perpetrator in discerning the nature of the ongoing police


investigation, he never suggested in his affidavit that a specific living at-large
perpetrator is currently under active investigation. Simply saying there is an
ongoing criminal investigation because the case has not been cleared, with little
additional explanation, is not objective indicia sufficient to show the ongoing
investigation exemption applies.
The sweeping generalities found in McCarthys, Sandovals, and Lieutenant
Gibsons affidavits are not the type of detailed justifications that lend
themselves to adequate adversary testing necessary to support the claimed
ongoing-investigation exemption. We do not see the detailed explanation found
by the trial court.
Id. at 76-77 (internal citation omitted). The Appellate Court made clear, in no uncertain terms,
that granting a motion to dismiss based on such deficient affidavits is reversible error:

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These affidavits are one-size-fits-all, generic and conclusory. ***


That is rubber stamp judicature. We decline to take part in it. The City is asking
us, as it did the trial court, to take the affiants word for it. For us to do so would
be an abdication of our responsibility.
Id. at 80.
In addition to the requirement that the government prove every exemption claim for
every record by clear and convincing evidence with a detailed factual justification, the
government must also prove that it undertook a thorough search for responsive records and
either produced or asserted an exemption over each one. BlueStar Energy Servs., Inc. v. Ill.
Commerce Commn, 374 Ill. App. 3d 990, 996-97 (2007). It must identify the search terms and
the type of search performed and identify the searched files and describe at least generally the
structure of the agencys file system which renders any further search unlikely to disclose
additional relevant information. El Badrawi v. Dept. of Homeland Security, 583 F. Supp. 2d
285, 298 (D. Conn. 2008). A search must be reasonably calculated to uncover all relevant
documents. Tarullo v. U.S. Dept. of Defense, 170 F. Supp. 2d 271, 274 (D. Conn. 2001).

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II.

HISTORY OF ILLEGAL SURVEILLANCE BY CPD

This case involves CPDs efforts to keep secret information about its use of powerful
surveillance equipment with the potential for significant abuse. CPDs arguments cannot be
viewed in isolation, but must be considered in their proper context.
For decades, CPD and the FBI targeted law-abiding people and organizations for illegal
surveillance and infiltration because of their political activities. As described by the Seventh

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Circuit:
From the 1920s to the 1970s the intelligence division of the Chicago Police
Department contained a unit nicknamed the Red Squad which spied on,
infiltrated, and harassed a wide variety of political groups that included but were
not limited to left- and right-wing extremists. Most of the groups *** were not
only lawful, and engaged in expressive activities protected by the First
Amendment, but also harmless.
Alliance to End Repression v. City of Chicago, 237 F.3d 799, 801 (7th Cir. 2001). 1 CPDs
targets included social workers, clergy, churches, and peace organizations engaged in legal and
Constitutionally protected activities. Alliance to End Repression v. City of Chicago, 561 F. Supp.
537, 540, 570 (N.D. Ill. 1982); Alliance to End Repression v. City of Chicago, 627 F. Supp.
1044, 1046 (N.D. Ill. 1985). CPD recorded its targets, compiling 1,760 reports on the Chicago
Peace Council alone, and distributed false information and testimony to newspapers and the
government about them. Alliance to End Repression, 627 F. Supp. at 1046-47, 1051.
CPD and its Red Squad also infiltrated target organizations by sending informants to join
the groups, take executive and board member positions, and participate in the groups top-level
decisions and even their legal teams. Id. at 1046; Alliance to End Repression v. Rochford, 75
F.R.D. 435, 437 (N.D. Ill. 1976). When CPDs informants learned about the planned suit, CPD

Courts may take judicial notice of matters which are commonly known or of facts which, while not generally
known, are readily verifiable from sources of indisputable accuracy. People v. Brown, 2015 IL App (1st) 122940,
86, reh'g denied (May 12, 2015).

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destroyed documents. Alliance to End Repression, 75 F.R.D. at 440. In 1982, a federal district
court entered a sweeping and long-lasting consent decree imposing detailed restrictions on the
CPDs investigative activities. ACLU of Ill. v. City of Chicago, No. 75 C 3295, 2008 WL
4450304, at *1 (N.D. Ill. Sept. 30, 2008). Among other things, the decree barred systematic
investigation and record keeping about political and social action organizations unrelated to
criminal conduct. Alliance to End Repression, 561 F. Supp. at 561. The decree remained in
effect for nearly three decades, dissolving just six years ago, and as late as 2008, Judge

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Gottschall of the Northern District of Illinois wrote:


In a post-9/11 world, government investigations of the activities of citizens and
groups have gained new purchase, with concomitant concerns for the free exercise
of civil liberties guaranteed by the Constitution. Although the specific activities
by the CPDs disbanded Red Squad that gave rise to the original consent decree
and the MCD belong to the past, the needs of the people to be protected from
organized and systematic surveillance of their lawful activities, as well as from
illegal harassment and arrest based upon lawful political associations, remain a
source of vital concern to the court and to the country in general.
ACLU of Ill., 2008 WL 4450304, at *4 n.3.
CPDs surveillance operations have not ended. Records that MARTINEZ obtained from
CPD under FOIA indicate that CPD in fact continues to conduct intelligence operations into
political groups, including groups protesting police misconduct. Ex. 1-A; see also Ex. 1-B. As
discussed in the following section, many people, organizations, and United States Senators are
concerned about the use of cell site simulators and fear that cell site simulators can be used to
create databases identifying people who attend political protests, among other Constitutionally
troubling practices.

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III.

CELL SITE SIMULATORS AND THEIR CONTROVERSIAL USE AND


DETERIORATING SECRECY

While CPD, Harris, and local and federal law enforcement agencies around the country
have gone to great lengths to conceal information about cell site simulators 2 and how they are
being used, details have slowly emerged. There is no real dispute that the equipment is being
widely deployed and allows for the interception of cell phone communications and location
tracking. Ex. 1-C; Ex. 1-D. Cell site simulators force devices up to several kilometers away to
disclose their subscriber IDs and other information to the police without the knowledge or
consent of the devices owner. Ex. 1-E at 2-3; Ex. 1-C; Ex. 1-D; Ex. 1-F; Ex. 1-G; Ex. 1-H; Ex.

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1-I. Police also appear to be using cell site simulators to capture the content of cellular
communications. Ex. 1-J at 6; Ex. 1-K; Ex. 1-F. Law enforcement is even deploying cell site
simulator technology in the U.S. on airplanes flown over major U.S. cities to collect data. Ex. 1L; Ex. 1-M.
To operate, a simulator mimics a legitimate cellular tower and sends commands to all
devices in a given area that force devices to disclose their subscriber IDs to the simulator, and
thus, to the police. Ex. 1-J at 11-13; see also Ex. 1-F; Ex. 1-N; Ex. 1-O. What law enforcement
agencies, including CPD, do with the data that they collect is being hidden from the public,
making it impossible to have a robust public debate on an issue with serious First and Fourth
Amendment and Illinois statutory privacy implications. Riley v. California, 134 S. Ct. 2473,
2494-95 (2014) (Modern cell phones are not just another technological convenience. With all
they contain and all they may reveal, they hold for many Americans the privacies of life, Boyd,
supra, at 630, 6 S.Ct. 524. The fact that technology now allows an individual to carry such
information in his hand does not make the information any less worthy of the protection for
2

Stingray is the commercial name for a popular Harris cell site simulator but has become a generic term for any
cell site simulator. This brief uses the terms interchangeably.

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which the Founders fought. Our answer to the question of what police must do before searching
a cell phone seized incident to an arrest is accordingly simpleget a warrant.); Tracey v.
Florida, 152 So.3d 504, 524 (Oct. 16, 2014) (We cannot overlook the inexorable and significant
fact that, because cell phones are indispensable to so many people and are normally carried on
ones person, cell phone tracking can easily invade the right to privacy in ones home or other
private areas, a matter that the government cannot always anticipate and one which, when it
occurs, is clearly a Fourth Amendment violation.); 725 ILCS 168 (prohibiting use of location
tracking without a probable-cause warrant).
A publicly available police training manual purchased online provides substantial

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technical details of how cell site simulators work and are used based on information that the
author describes as publicly available and not law enforcement sensitive techniques:
Cell phone tracking and the use of site emulators are commonly known within our
field by the code word Triggerfish or Stingray. The equipment works by
emulating a cell tower and querying the particular serial number of a given device
and measuring the signal strength to the device. This allows the operators to
locate the device and, hopefully, its user. *** Depending on the configuration, the
equipment is also capable of capturing the unique serial numbers of all devices in
a certain area. This assists investigators to isolate a suspects previously unknown
cell device.
To be used effectively, Triggerfish relies on an operational pen register to locate
the cell tower and sector the device most recently used. The Triggerfish team will
then go to the area the cell phone sector covers and try to locate the device. In my
experience, the equipment is extremely accurate but relies on skilled technicians
operating the device, a responsive and competent surveillance element, some
degree of intelligence regarding the suspects associates, and an active cell phone
associated with your target.
Ex. 1-P; see also, e.g., Ex. 1-I; Ex. 1-J.
Use of cell site simulators appears to be very widespread across the country and growing.
Recently released information indicates that the Baltimore police deployed stingrays 4,300 times
in less than a decade. Ex. 1-Q. The ACLU identified over 1,800 uses of stingrays by the subset
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of Florida law enforcement agencies for whom information was available. Ex. 1-R.

The

criminal cases that have brought stingrays to the publics attention have not been cases of
national security. Ex. 1-Q; Ex. 1-S; Ex. 1-T. At least one Florida police department purchased
cell site simulators on an emergency no-bid basis for the purpose of spying on political
activists. Ex. 1-U.
Secrecy around stingrays has extended even to law enforcement representations to the
courts. Judges in Tacoma, Washington learned in 2014 that they had been unknowingly
authorizing stingray use; the pen register applications presented to them by Tacoma detectives
contained no mention of stingray technology. Ex. 2 at 13; see also Ex. 1-V. The federal

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government has sought court authorization for stingray operations without informing judges of
its intent to use stingrays and without explaining the technology. Ex. 1-E at 9-19. Documents
show that the U.S. Marshals office instructed police in Florida not to provide courts with
information on stingrays, and police there falsely referred to obtaining information from use of
stingray surveillance as having been received information from a confidential source regarding
the location of a suspect. Ex. 1-W.

Law enforcement officials are even letting accused

criminals go free or plead to reduced sentences rather than disclose details about the role that cell
site simulators played in an investigation. Ex. 2 at 14; see also Ex. 1-F; Ex. 1-G; Ex. 1-Q.
Just a few months ago, the Committee on the Judiciary of the U.S. Senate sent a letter to
the U.S. Attorney General and the Secretary of the Department of Homeland Security
questioning the Constitutionality of the federal governments use of cell site simulator
technology. Ex. 1-X ([W]e are concerned about whether the FBI and other law enforcement
agencies have adequately considered the privacy interests of other individuals who are not the
targets of the interception, but whose information is nevertheless being collected when these

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devices are being used.).

Senator Bill Nelson raised similar Constitutional and privacy

concerns in an inquiry to the FCC. Ex. 1-Y.


Courts have also begun to address cell site simulator issues after years of law
enforcement successfully keeping its practices secret. This year, a New York court ruled that
Erie County should not have withheld or redacted documents about stingrays including the
countys purchase orders and justification memoranda, a procedural manual, and the countys
non-disclosure agreement with the FBI. New York Civil Liberties Union v. Erie County Sheriffs
Office, 47 Misc.3d 1201(A), 2015 N.Y. Slip Op. 50353(U), at **10-13 (S. Ct. of Erie County,

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NY March 17, 2015) (attached as Ex. 3). The court there held:
In essence, [the FBIs] instructions are to conceal from the public the existence,
technological capabilities, or uses of the device. Indeed, the Sheriffs Office is
instructed, upon the request of the FBI, to seek dismissal of a criminal prosecution
(insofar as the Sheriffs Office may retain influence over it) in lieu of making any
possibly compromising public or even case-related revelations of any information
concerning the cell site simulator or its use. If that is not an instruction that affects
the public, nothing is.
Id. at *11. In another decision, a North Carolina judge, upon a newspapers petition and with the
eventual consent of local police, unsealed applications made to judges by local police in
hundreds of criminal cases involving stingray use; the applications were shown to contain only
boilerplate language about phone data, and no specific reference to stingray technology. Ex. 1Z; Ex. 1-AA. Charlotte Police will now disclose greater information about stingray use and will
routinely unseal court orders in closed cases. Ex. 1-AB. Last year, a federal court in California
ordered the release of portions of a manual for federal prosecutors entitled Electronic
Surveillance Non-Wiretap. ACLU of N. Cal. v. Dept. of Justice, 12-cv-04008-MEJ, 2014 WL
4954277, at *12 (N.D. Cal. Sept. 30, 2014). That same court recently ordered the release of a
sealed order for stingray use and information regarding how the federal government is using
stingrays. ACLU of N. Cal. v. Dept. of Justice, No. 13-cv-03127-MEJ, 2015 WL 3793496, at
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**1, 15 (N.D. Cal. June 17, 2015).


While law enforcement and Harris have attempted to impose near-total secrecy over cell
site simulator usage, Harris and others have disclosed substantial information in their publicly
available patent filings as part of efforts to obtain patent protection for these devices. The patent
laws require that an inventor disclose sufficient information about an invention to allow one of
skill in the relevant field to make and use the invention. 3 A search of Googles online database
of U.S. and foreign patents and applications for the term IMSI catcher produced 94 results.
Ex. 1-AC. Harris owns a number of patents that appear to relate to cell site simulators, including
at least:

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Multi-Channel Cellular Communications Intercept System, which claims in its


abstract to be a multi-channel cellular communications intercept system for
monitoring and then intercepting communications between a mobile unit and a
base station in one cell of a cellular telephone system;
Remote Mobile Monitoring and Communication System, which claims in its
abstract to be a system and method for monitoring the location and/or presence
of an object/person within a desired area using a mobile base station that may
be transported to an arbitrary site;
Apparatus and Method for Tracking and Communicating with a Mobile Radio
Unit, which claims in its abstract to facilitate determining the location of at least
one mobile radio unit and displaying on a computer display an object identifier
corresponding to the mobile radio unit;
Wireless Communications System Including a Wireless Device Locator and
Related Methods, which claims in its abstract to use a plurality of location
finding signals to target [a] wireless communications device from among other
devices; and

3 Annotated Patent Digest 20:42 (Under the first prong of the enablement requirement, the patent specification
must provide sufficient teaching so one of skill in the art can make the claimed invention.) (attached as Ex. 4); 3
Annotated Patent Digest 20:44 (As the second prong of the enablement requirement, a patent specification must
teach one of skill in the art how to use the claimed invention.) (attached as Ex. 5); The Choice Between Patent
Protection and Trade Secret Protection: A Legal and Business Decision, 84 J. Pat. & Trademark Off. Soc'y 371, 377
(2002) (Patent and trade secret law can be viewed as alternative bodies of law for protecting certain types of
inventions. Consequently, an inventor will often have to make a choice or election between the type of protection to
rely on.).

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Communication Network for Detecting Uncooperative Communications Device


and Related Methods, which states in its Background of the Invention that [i]n
government, municipal, and law enforcement applications, there is sometimes a
desire to track a communications device, and describes a number of existing
systems over which the invention claims to be an improvement.
Ex. 1-AD - Ex. 1-AH. Thus, it appears that Harris and others have disclosed a significant
amount of highly technical information for their own purposes already, notwithstanding the
parade of horribles that CPD and Harris claim would result.
IV.

GLOBAL FAILURES BY CPD TO MEET ITS BURDEN

A. CPD Has Not Established An Adequate Search For Records


Especially given the nature of the records at issue, it is crucial that CPD conduct a

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thorough search for records, as the law requires. To support its claim that it performed a
sufficient search, however, CPD relies solely on the affidavit of Sergeant Costa. The affidavit
states that Costa has only been in his Tech Lab assignment since August 2012, yet records
produced under FOIA indicate that CPD first acquired cell site simulators in 2005. Exhibit 1-AI.
Costa did not speak with any of his predecessors or otherwise do anything to determine where
further records might be located. Inadequate recordkeeping controls at CPD have been well
documented, including the storage of critical files in obscure basement locations and the homes
of individual officers. 4
In addition, the Costa affidavit makes clear that the Tech Lab is limited to equipment

Fields v. City of Chicago, No. 10 C 1168, 2014 WL 477394, at *6-7 (N.D. Ill. Feb. 6, 2014) (The term [street
files] is a reference to a practice that the Chicago Police Department once had of maintaining investigative records
that were withheld from the state's attorney and therefore unavailable as a source of exculpatory information that
might induce him not to prosecute or, failing that, would at least be available to defense counsel under Brady v.
Maryland[.] The practice was supposedly eliminated by police department internal rules just before Fields's first
trial. . . . During discovery in the present case, however, a file of over a hundred pages of police reports concerning
the Smith/Hickman murders was located in a nondescript file cabinet at the Area 1 police station, along with files
relating to other murders. (internal quotation omitted)); Ex. 1-AJ at 110 n.649 (In response, according to Walsh,
he then locked the file in a cabinet in his Area 3 office and later took the file home and placed it in his personal safe
for some period of time, until William Bazarek (First Assistant General Counsel to CPD) told him that keeping an
original homicide file at his home was not a good decision.); id. at 110 n.648 (describing long-missing files in
Koschman investigation).

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used by the various divisions within the Bureau of Organized Crime, that the search was
limited to the Tech Labs files for documents relating to cell site simulator equipment and the
possible deployment of such devices by CPD officers, and that Costa was only asked to locate
documents in the Tech Labs possession.

CPD Memo. at 4; CPD Memo. Ex. 3.

No

explanation is provided for why other repositories were not searched, such as each BOC division,
the top CPD leadership, the CPD legal department, other operational departments (including but
not limited to those responsible for First Amendment sensitive investigations) and unsanctioned
repositories. Ex. 1-AK. While Costas affidavit states that to the best of my knowledge, CPD
Bureaus other than the Bureau of Organized Crime do not possess cell site simulator equipment,

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this statement is not at all definitive and is unsurprising given that Costas experience with the
equipment is limited to the BOC, rendering CPDs logic completely circular. Moreover, Costas
affidavit admits that it leaves out undisclosed relevant facts about CPDs search for records.
CPD Memo. Ex. 3 at 6. Because CPD failed to establish a thorough search for records, its
motion to dismiss must be denied.
B. The Affidavits Should Be Categorically Rejected As Inadequate To Establish
Any Exemption Claims 5
Courts have repeatedly made clear that conclusory affidavits do not establish FOIA
exemptions.

Despite this clear and consistent caselaw (including caselaw criticizing CPD

specifically), CPD does not provide a single affidavit from anyone knowledgeable about any
CPD investigations or use of cell site simulator equipment. Rather, CPD relies solely on the
affidavits of an FBI agent based in Virginia and a Harris employee apparently responsible for
sales to attempt to establish its exemption claims. Costas affidavitthe only CPD affidavitis
limited to discussing the search for responsive records and does not address the factual predicates
5

This section is limited to the facial invalidity of the affidavits. Contradictory evidence is addressed in the specific
sections below.

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for any of the claimed exemptions. No further analysis is required to deny CPDs motion because
exemption claims must be proven by clear and convincing evidence through detailed affidavits.
5 ILCS 140/1.2; Day, 388 Ill. App. 3d at 73.
As for Morrisons affidavit, it is replete with flaws and conclusory claims lacking
foundation. Morrison states that the FBI has always asserted that cell site simulators are exempt
from discovery and discusses what the FBI has done as a matter of policy. CPD Memo. Ex. 5
at 3, 5. Contrary to the implication of these statements, the FBI is not the law, and the
positions it takes and policies it promulgates are irrelevant to what the Illinois FOIA requires.
And as discussed above, the Senate Judiciary Committee has questioned the FBIs practices.

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Further, Morrisons affidavit is not specific to the particular equipment owned by CPD or
the way in which CPD has deployed it, and there is no indication that he is even aware of the
specific equipment at issue or has ever spoken to anyone at CPD about anything. Morrison
nonetheless makes the conclusory claim that disclosure of what appears to be innocuous
information about the use of cell site simulators would provide adversaries with critical
information that would allow them to take countermeasures designed to thwart the use of this
technology and makes a completely unexplained and unproven claim of national security. Id.
at 4, 6. These broad, conclusory, unsubstantiated, take-my-word-for-it claims are nearly
identical to those soundly rejected by the Appellate Court in Day, the acceptance of which would
amount to rubber stamp judicature. 388 Ill. App. 3d at 76 (rejecting conclusory statement by
police officer that seemingly innocuous information may prove valuable to an at-large
perpetrator in discerning the nature of the ongoing police investigation).
Nor are Morrisons talismanic conclusions about what qualifies as homeland security
information or US munitions up to the standards of Day. In fact, there is no indication of his

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qualifications even to make these statements, particularly given that the FBI has no jurisdiction
over export controls and that the affidavit attaches no supporting evidence for its legal
conclusions. Ex. 1-AL. Finally, and clearly demonstrating the boilerplate nature of the affidavit,
Morrison has submitted nearly identical affidavits in other cases in other states, including in the
Erie County case in which the court ordered the release of information. Ex. 1-AM.
CPD also relies on an affidavit submitted by Harris Corporationthe company who
profits from the sale of cell site simulators and has made clear that its motivation is to inhibit
competition, to the detriment of taxpayers, in the market for equipment claimed to be essential to
national security.

CPD cites to no authority applying a presumption of good faith to the

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affidavits of private, profit-motivated companies with a clear bias in suppressing information for
commercial reasons. 6 Moreover, trade secret claims are highly fact intensive and generally
unsuitable for resolution by way of affidavits or dispositive motions. See Learning Curve Toys,
Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 723 (7th Cir. 2003) (The existence of a trade secret
ordinarily is a question of fact [and] requires an ad hoc evaluation of all the surrounding
circumstances. For this reason, the question of whether certain information constitutes a trade
secret ordinarily is best resolved by a fact finder after full presentation of evidence from each
side. (internal citations omitted)).
Even if the Harris affidavit was entitled to any weight, it is replete with fatal problems.

5 U.S.C. 552(a)(4)(B) (In addition to any other matters to which a court accords substantial weight, a court shall
accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical
feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).) (emphasis
added); BlueStar Energy Servs., Inc., 374 Ill. App. 3d at 997 (Affidavits submitted by an agency are accorded a
presumption of good faith.) (quoting and citing Carney v. U.S. Dept. of Justice, 19 F.3d 807, 812 (2d Cir. 1994)
(internal quotation omitted)); Matter of Wade, 969 F.2d 241, 246 (7th Cir. 1992) (discussing when [g]overment
affidavits are sufficient to sustain claims of document exemption.); ACLU v. U.S. Dept. of Defense, 628 F.3d
612, 619 (D.C. Cir. 2011) (describing when an agencys affidavit can provide the basis for summary judgment).
Further, for the purposes of preserving a related issue for appeal, MARTINEZ contends that BlueStar was
improperly decided even as to government affidavits because it relied on federal cases that were relying on specific
federal statutory language regarding this presumption that does not exist in the Illinois statute.

- 15 -

There is no foundation for Rimellis purported expert opinion about the potential harm to Harris
if the alleged trade secrets were disclosed or the competitive advantage that would be lost if
even the layout and ease-of-use of the user interface was disclosed. Rimelli is not even an
executive level employee and the affidavit is silent on his education and or other credentials that
would allow him to make such broad expert claims. Nor does he provide any basis to opine
upon export control regulations or to claim that executive decision makers at Harris would find it
difficult [but not impossible] for Harris to continue providing equipment to the CPD if this
Court orders release of any stingray information, which implausibly implies that Harris would
give up hundreds of thousands of dollars in sales to CPD and put national security at risk if it

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does not get its way.


Because none of the affidavits meet the necessary standards, and because all of the
exemption claims rely on the affidavits, CPDs motion to dismiss must be denied.
C. MARTINEZ Has Prevailed In Defeating CPDs Willful and Improper
Refusal to State What Records Exist or Not
In its FOIA denial, CPD refused to disclose whether any records responsive to any
requests even exist, thus leaving the public with no idea whether CPD has actually deployed any
cell site simulators, analyzed Constitutional issues, obtained any court orders, or issued any
policies and procedures to govern use of cell site simulators, etc. Compl. Ex. B at 1 (Upon
review, the City of Chicago has determined that your Request must be denied, as the requested
records, to the extent they may exist, are exempt from release under the following provisions of
the Illinois FOIA. (emphasis added)). Nothing in the Illinois FOIA statute permits a public
body to refuse to state whether responsive records exist or to make exemption claims over
hypothetical records. 5 ILCS 140/9.
In response to this litigation, CPD has finally acknowledged what records it has and does
- 16 -

not have, and those statements make clear that CPD has deployed cell site simulators, often in
improper reliance on pen register orders that CPD refuses to produce, and that CPD has no
policies or procedures to govern when the equipment may be used or any analysis of
Constitutional issues associated with use of the equipment. CPD Memo. Ex. 3. By obtaining
this information, MARTINEZ has at least partially prevailed, and will pursue his claims for
attorney fees and civil penalties once issues regarding the production of records have been
resolved. CPDs motion fails to address this issue in any way.
V.

CPD HAS FAILED TO ESTABLISH ANY SPECIFIC EXEMPTION CLAIM

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A. Request 1: Documents sufficient to show, for each individual occurrence,


when, where, how, why, and by whom Chicago Police deployed any devices
commonly known as IMSI catchers
CPD has identified as responsive to this request and allegedly exempt: (1) court orders
and applications for court orders; (2) Harris manuals and guides; and (3) internal purchase
justification memoranda. CPD has failed to establish any of its litany of exemption claims.
1. Court Orders and Applications
i.

Pen Register Statute

CPD first argues that the court orders it obtained under the pen register statute were
ordered to remain under seal. CPD Memo. at 6. CPD acknowledges that the orders need only
remain under seal until otherwise ordered by the court, yet CPD has refused to ask the issuing
courts to remove the seals so that the orders and applications may be produced under FOIA
(subject to any FOIA exemptions) or to produce enough of the orders to at least identify the
courts and judges involved. CPD takes this position even though it does not contend that the
orders contain information exempt under FOIA Section 7(1)(d)(i) (information that would
interfere with pending or actually and reasonably contemplated law enforcement proceedings),
and as such, there does not appear to be any basis for a continued seal. See Skolnick v. Altheimer
- 17 -

& Gray, 191 Ill. 2d 214, 230 (2000) (The common law right of access to court records is
essential to the proper functioning of a democracy[.]) (internal citations omitted); ACLU of N.
Cal, 2015 WL 3793496, at **15-16 (ordering release of sealed federal stingray search warrant in
closed investigation).

To the extent there is discrete information within the orders and

applications that is actually exempt, it can be redacted, but the public has an interest and right in
learning, among other things, whether CPD has misled courts to obtain these orders and in what
types of cases they are being used. ACLU of N. Cal., 2015 WL 3793496, at *16.
In addition, the pen register statute upon which CPD relies is inapplicable to the use of
cell site simulators, and the prohibition in that statute on disclosure of an order authorizing or

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approving the installation and use of a pen register or a trap and trace device, 18 U.S.C.
3123(d)(1), does not apply to the installation and use of a cell site simulator and so is irrelevant.
A pen register is a device that records the numbers dialed by a particular telephone; a trap and
trace device records the incoming numbers to a telephone. Ex. 2 at 8; Ex. 1-AN at 5-6. Cell
site simulators, however, can capture a cell phones unique serial number, its location, and the
content of calls, text messages, and web pages visited, all without the knowledge of the phone
carrier. Ex. 2 at 9-12; Ex. 1-AO at 144-148. While pen registers and trap and trace devices
only capture information from a single source, In re the Application of the U.S. for an Order
Authorizing the Installation & Use of a Pen Register & Trap & Trace Device, 890 F. Supp. 2d
747, 750 (S.D. Tex. 2012), cell site simulators collect data from every other mobile device in
range. Ex. 2 at 15-18; Ex. 1-AO at 14546. Because the data-collecting abilities of cell site
simulators so greatly exceed those of pen registers and trap and trace devices, court orders for
pen registers and trap and trace devices are inappropriate to permit the use of cell site simulators.
Ex. 2 at 20; In re Pen Register & Trap & Trace Device, 890 F. Supp. 2d at 752 (denying

- 18 -

governments application for pen register or trap and trace device for stingray because
a pen register does not apply to this type of electronic surveillance.); Ex. 2-C at 81-82 (stingray
devices are ill-suited for extremely low pen register standard).
Further, the pen register statute authorizes orders issued to state law enforcement based
on a mere relevance standard but only unless prohibited by State law. 18 U.S.C. 3122(a)(1).
The Illinois Constitution specifically protects the public from unreasonable interceptions of
communications by eavesdropping devices or other means and states that [n]o warrant shall
issue without probable cause, supported by affidavit particularly describing the place to be
searched and the persons or things to be seized. Ill. Const. Art. I, 6. The Illinois Freedom

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From Location Surveillance Act, made effective as of August 26, 2014, states that
a law enforcement agency shall not obtain current or future location information
pertaining to a person or his or her effects without first obtaining a court order
based on probable cause to believe that the person whose location information is
sought has committed, is committing, or is about to commit a crime or the effect
is evidence of a crime, or if the location information is authorized under an arrest
warrant[.]
725 ILCS 168/10. The secrecy provisions of the pen register statute are irrelevant.
ii.

Unique or Specialized Investigative Techniques

CPD next contends that the orders and applications reveal unique or specialized
investigative techniques other than those generally used and known under FOIA Section
7(1)(d)(v). The use of cell site simulators generally and by CPD specifically is well known,
including the manner in which the devices operate. CPD concedes this, but argues that under
Catledge v. Mueller, 323 Fed. Appx. 464 (7th Cir. 2009), this does not defeat its exemption
claim. CPD Memo. at 6-7. To the contrary, the federal FOIA exemption at issue in that case
was materially different from Section 7(1)(d)(v): there was no federal FOIA statutory
requirement that the information show unique or specialized investigative techniques other than
- 19 -

those generally used and known. Compare Catledge, 323 Fed. Appx. at 466-467, with 5 ILCS
140/7(1)(d)(v). When the federal FOIA and state FOIA differ in material ways, Illinois courts do
not follow federal decisions. Better Govt Assn, 386 Ill. App. 3d at 815 (For over 200 years,
Congress has not seen fit to specifically restrict the behavior of subpoena recipients. . . . [T]hose
[federal] courts that have decided that Congress failure to act was the result of an oversight have
taken it upon themselves to correct this oversight by judicially amending Rule 6(e)(2). We
disagree with this course of action and decline to follow it.). Nor do Illinois courts stray from
the clear text of statutory exemptions. Id.; Fagel v. Dept of Transp., 2013 IL App (1st) 121841,
35 ([W]e agree with the circuit courts observations that the function of the courts is to

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interpret the statute as it is written despite any perceived policy concerns.); Pritza v. Village of
Lansing, 405 Ill. App. 3d 634, 645 (2010) (court must not legislate where the language of the
statute is plain and certain). As a federal court recently found with regard to similar federal
records ordered to be produced, the public in general knows that the government possesses and
utilizes such cell phone technology in its investigations to locate and obtain information about
the cell-phone holder, and so the related federal exemption did not apply. ACLU of N. Cal.,
2015 WL 3793496, at **12-13.
Finally, CPDs claims about supposed countermeasures is unfounded on the merits. As
discussed above, the Morrison affidavit does not nearly meet the exacting standards set forth by
the courts of this state. Day v. City of Chicago, 388 Ill. App. 3d 70, 73 (2009). Even if it did,
however, both an expert affidavit and publicly available information make clear that technical
countermeasures already exist and the release of the information typically found in pen register
applications and orders would not tell criminals anything that is not already widely known. Ex.
1-AP; Ex. 2 at 27-28.

- 20 -

2. Harris Operator Manuals and Quick Reference Guide


i.

Trade Secrets

CPD argues that every single word on every single page in every single Harris manual
and guide provided to CPD is a trade secret, the release of which would result in significant
competitive harm to Harris. In doing so, CPD contends that protecting Harris from competition
is more important than the publics right to know the extent of electronic surveillance by a police
department with a long history of illegal surveillance against political dissenters. CPD is wrong:
trade secret protection is not absolute and must be balanced against the public interest in
disclosure. Alpha School Bus Co., Inc. v. Wagner, 391 Ill. App. 3d 722, 740 (2009) (The

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protection of trade secrets must be balanced against conflicting social and economic interests.);
see also Restatement (Third) of Unfair Competition 39 (1995) (The subject matter and scope
of trade secret protection is necessarily limited by the public and private interest in access to
valuable information.); cf. Pub. Citizen Health Research Grp. v. Food & Drug Admin., 704 F.2d
1280, 1288-89 (D.C. Cir. 1983) (narrowly defining trade secret under federal FOIA); Anderson
v. Dept of Health & Human Servs., 907 F.2d 936, 944 (10th Cir. 1990) (same). The public
interest here is tremendous given the local and national interest (including the interest of the U.S.
Senate Judiciary Committee) in monitoring government surveillance for Constitutional abuses.
Even if Harris commercial interests in secrecy outweighed the publics interest in
disclosure, the cited exemption only protects trade secrets that were furnished [to the
government] under a claim that they are proprietary, privileged or confidential.

5 ILCS

140/7(1)(g). Harris claims only that it marked four of the manuals as confidential; the remaining
responsive records are ineligible for protection under this exemption. CPD Memo. Ex. 4 at 3.
Moreover, CPD has failed to prove that the records qualify as trade secrets under Illinois
law. Courts consider the following elements in determining what qualifies as a trade secret:
- 21 -

(1) the extent to which the information is known outside of the plaintiffs business;
(2) the extent to which it is known by the employees and others involved in the
plaintiffs business; (3) the extent of measures taken by the plaintiff to guard the
secrecy of the information; (4) the value of the information to the plaintiff and to
the plaintiffs competitors; (5) the amount of effort or money expended by the
plaintiff in developing the information; and (6) the ease or difficulty with which
the information could be properly acquired or duplicated by others.
Alpha School Bus, 391 Ill. App. 3d at 740.
CPD has failed to establish any of these factually intensive elements. As discussed
above, information about cell site simulators has been disseminated already to obtain patent
protection and is otherwise well-known. With regard to the second element, Harris provides no
details whatsoever as to its internal controls over these alleged trade secrets. With regard to the

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third element, Harris has not adequately guarded the secrecy of the manuals because its
customer, CPD, has no written protocols in place to govern access to these manuals and has no
logs of which employees have ever viewed them. Ex. 1-AQ at 4. Nor, given the number of CPD
officers convicted or having pled guilty to crimes of theft and dishonesty, would release of such
allegedly sensitive information to CPD generally, absent background checks, monitoring, and
tight controls of access on an officer-by-officer basis, qualify as sufficient measures to retain
trade secret status. 7 Under the fifth factor, Harris makes only conclusory claims about the
expense of developing these manuals and provides no specifics. And under the final element,
patent disclosures by definition must allow any competitor to duplicate the technology.
7

See, e.g., United States v. Watts, 12-CR-87, Dkt. # 90, at 22-26 (N.D. Ill. Nov. 4, 2014) (transcript of sentencing
hearing of former Chicago Police Officer Ronald Watts, who pled guilty to corruption charges of shaking down drug
dealers for protection money in the course of his official duties) (attached as Ex. 6); Green v. London, 11-CV-7067,
Dkt. # 104, at 65 (N.D. Ill. Dec. 17, 2014) (admission by Chicago Police Officer Sylshina London to perjury
conviction) (attached as Ex. 7); United States v. Burge, 711 F.3d 803, 806 (7th Cir. 2013) cert. denied, 134 S. Ct.
315 (2013) (affirming conviction of former Chicago Police Commander Jon Burge for obstruction of justice and
perjury); Ex. 1-AR at 1 (An analysis of five decades of news reports reveals that since 1960, a total of 295 Chicago
Police officers have been convicted of serious crimes, such as drug dealing, beatings of civilians, destroying
evidence, protecting mobsters, theft and murder.); United States v. Handardt, 00-CR-853, Dkt. # 1 (indictment
against high-ranking CPD officer for jewelry theft enterprise that included gathering information from law
enforcement databases) (N.D. Ill. Oct. 19, 2000) (attached as Ex. 8); United States v. Handardt, 00-CR-853, Dkt. #
236 (guilty plea) (N.D. Ill. Oct. 25, 2001) (attached as Ex. 9).

- 22 -

CPD attempts to ignore these requirements under Illinois law in favor of an obsolete test
only requiring a showing that release would either inflict substantial competitive harm or make it
more difficult for CPD to induce people to submit similar information in the future, relying on
BlueStar Energy Services, Inc. v. Illinois Commerce Commission. CPD Memo. at 8. That
decision turned on the legislative history of the prior and broader version of the exemption.
BlueStar, 374 Ill. App. 3d 990, 995 (2007); Pub. Act 96-542 (eff. Jan. 1, 2010) (amending 5
ILCS 140/7) (narrowing amendment to trade secret provision). Further, the BlueStar test itself
came from a federal decision interpreting federal FOIA, 374 Ill. App. 3d at 995, which applies
not to technical information of the sort at issue here, but rather, to the distinct category of

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commercial or financial information. Fed. Info. Manual (2d ed.), 8.4 (attached as Ex. 10)
(distinguishing between the two types of claims and describing fairly narrow scope of trade
secret exemption). Technical manuals (CPD concedes that the records include only technical
information, CPD Memo. at 8) are not commercial or financial and therefore would not be
subject to the test CPD proposes even if BlueStar remained good law. In fact, the FCC has
already produced a redacted copy of a 2010 StingRay and KingFish User Manual in response to
a FOIA request, 8 contrary to CPDs claim that the entire manuals must be withheld as trade
secrets.

FCC

Resp.

to

FOIA

Control

No.

2014-669,

available

at

http://www.scribd.com/doc/259987684/FCC-FOIA-StingRay-KingFish-User-Manual-2010.
Even if the manuals were commercial and financial information and even if the federal
FOIA test applied to them, CPD has still failed to make the required showing on the merits. The
Harris affidavit makes only broad and conclusory claims with no detailed factual support, and it
defies common sense that a competitor could compete with Harris simply by knowing the
information provided to operators of the device. Similarly, that Harris would give up hundreds
8

MARTINEZ does not concede that FCCs redactions were proper.

- 23 -

of thousands of dollars in contracts with CPD and put national security at risk by denying CPD
access to its allegedly critical technology if this Court orders the information released is simply
implausible.
ii.

Valuable Formulae

It is similarly implausible that user manuals and guides would contain actual algorithms,
software code, schematic designs, or other such detailed technical information, as opposed to
basic information about how to operate the equipment. CPD offers no evidence to support this
exemption claim, and makes only a footnote argument that does not overcome the presumption
of disclosure by clear and convincing evidence. This tagalong claim should be rejected.

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iii.

ITAR

CPD claims federal law specifically prohibits the production of stingray manuals and
guides to a U.S. citizen under FOIA. CPDs argument fails for multiple reasons.
Section 7(1)(a) only exempts records specifically prohibited from disclosure by a state
or federal law. 5 ILCS 140/7(1)(a); Better Govt. Assn, 386 Ill. App. 3d at 818 (federal grand
jury subpoenas not specifically prohibited from disclosure under federal criminal rules; our
legislature has authorized exemptions to the FOIAs expansive disclosure policy when a given
disclosure is not just prohibited by federal or State law or rules and regulations adopted under
federal or State law but specifically so prohibited (emphasis in original)). While such state or
federal law or regulation need not specifically mention FOIA, there must still be a specific
prohibition against disclosure of the records. Id.; S. Illinoisan v. Ill. Dept. of Pub. Health, 218
Ill. 2d 390, 427 (2006) (narrowly construing Section 7(1)(a) exemption as applied to Cancer
Registry legislation).
While it is difficult to determine from CPDs conclusory ITAR claims and Morrisons
conclusory affidavit exactly what provision of ITAR CPD claims to prevent the disclosure of the
- 24 -

manuals to MARTINEZ, as best as MARTINEZ can decipher, CPD claims that 22 U.S.C.
2778(b)(2) and 22 C.F.R. 123.1 prohibit exporting any defense articles without a license.
CPD Memo. at 11. CPD claims that the manuals are technical data under 22 C.F.R. 120.17,
and while CPD does not cite to any provision under ITAR prohibiting the export of technical
data (as opposed to defense articles), MARTINEZ does not dispute that 22 C.F.R. 120.6
defines defense article to include technical data. Under 22 C.F.R. 120.17, however, on which
CPD specifically relies, export is defined, in relevant part, to mean: (4) Disclosing (including
oral or visual disclosure) or transferring technical data to a foreign person, whether in the United
States or abroad[.] The regulations simply do not prohibit the distribution of technical data to a

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U.S. citizen such as MARTINEZ. See New York Civil Liberties Union, 47 Misc.3d 1201(A), at
*10 (The Court instead is convinced by petitioners argument that the disclosure of public
records pursuant to New Yorks Freedom of Information Law . . .even records concerning
respondents ownership and use of a cell site simulator device that itself may or may not be
subject to arms/munitions or defense technology export restrictionsdoes not amount to the
actual export of such arms, munitions, or defense technology.); Ex. 1-AS at 15-16.
Even if ITAR prohibited the distribution of technical data to a U.S. citizen, however,
CPD would still need to prove that the manuals are technical data. That term is defined in 22
C.F.R. 120.10(a)(1) to include [i]nformation . . . which is required for the design,
development, production, manufacture, assembly, operation, repair, testing, maintenance or
modification of defense articles. This includes information in the form of blueprints, drawings,
photographs, plans, instructions or documentation. CPD does not explain which specific subprovision of this definition it contends to apply to the manuals, but presumably it relies on
operation . . . of defense articles and instructions or documentation. CPD has not shown that

- 25 -

the manuals are such technical data, as opposed to basic marketing information on function or
purpose or general system descriptions of defense articles, which are specifically excluded
from the definition of technical data. 22 C.F.R. 120.10(a)(5); see also Karn v. U.S. Dept. of
State, 925 F. Supp. 1, 13 (D.D.C. 1996); United States v. Edler Indus., 579 F.2d 516, 520-21
(1978); Preamble to Revisions of ITAR (Final Rule), 49 Fed. Reg. 47,682, 47,683 (Dec. 6, 1984)
(explaining that technical data in ITAR has a narrow applicability); id. at 47683 (The
Departments long-standing practice of regulating only information that is directly related to
defense articles . . . remains unchanged.).
Nor has CPD shown that the devices themselves, whose operations are allegedly shown

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in the manuals, are defense articles, and without such a showing, the manuals cannot qualify as
technical data subject to any export controls. CPD cites broadly to Category XI of 22 C.F.R.
121.1 without specifying the specific provision under which each of the relevant cell site
simulators allegedly falls or any documentation to prove its assertion, see 22 C.F.R. 120.4
(describing paperwork and procedures for commodity jurisdiction determinations), and as
discussed above, there is no foundation for Morrisons claims about ITAR. In fact, there is
abundant evidence that cell site simulators are not defense articles subject to ITAR.

The

affidavit of an actual expert on ITAR states that cell site simulators are likely not regulated under
ITAR. Ex. 1-AS. Records obtained from the U.S. Department of Commerce, Bureau of Industry
and Security, indicate that cell site simulators are regulated not under ITAR, but rather, under the
Export Administration Act. Ex. 1-AT; see also Ex. 1-AS at 8. Finally, Harris sale of this
allegedly highly sensitive military equipment and manuals to local law enforcement and CPDs
lack of any written procedures governing access to the manuals or equipment or any logs of who
has accessed the manuals or equipment are completely inconsistent with the proposition that the

- 26 -

manuals are subject to arms export regulations. Ex. 1-AS at 11; Ex. 1-AQ at 3-4; Ex. 1-AU at
3; CPD Memo. Ex. 2 at 5. And as discussed above, it appears that Harris has already disclosed
substantial information regarding its devices to obtain patent protection and the FCC has released
a redacted copy of at least one Harris manual. For these reasons, CPD has failed to show that the
manuals and guides are specifically prohibited from disclosure to MARTINEZ under ITAR.
iv.

Unique or Specialized Investigative Techniques

For the same reasons that CPD failed to show that court orders and applications satisfy
this exemption claim, so too does the claim as to the Harris manuals fail.
v.

Security Measures

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Just as the manuals do not show investigative techniques, they also do not show any
vulnerability assessments or security measures. Nor has CPD even attempted to show in its
footnote argument, CPD Memo. at 12 n.4, that the manuals are designed to identify, prevent, or
respond to potential attacks upon a communitys population or systems, facilities, or
installations, the destruction or contamination of which would constitute a clear and present
danger to the health or safety of the community, or the extent that disclosure could reasonably
be expected to jeopardize the effectiveness of the measures or the safety of the personnel who
implement them or the public. 5 ILCS 140/7(1)(v). CPDs sole purported justification for this
exemptionbecause the cell site simulator equipment may be used in terrorism
investigationswould render CPDs policies, procedures, manuals, etc. on nearly every aspect
of policing exempt merely because the information might also be used in terrorism
investigations.

- 27 -

3. Internal Purchase Request and Purchase Justification Memoranda


i.

The Records Are Per Se Non-Exempt

The FOIA statute and Illinois Constitution both require, in no uncertain terms and with
no exceptions, that records related to the obligation, receipt, and use of public funds are subject
to disclosure, period. Ill. Const. Art. VIII, 1(c) (Reports and records of the obligation, receipt
and use of public funds of . . . units of local government . . . are public records available for
inspection by the public according to law.); 5 ILCS 140/2.5 (All records relating to the
obligation, receipt, and use of public funds of . . . units of local government . . . are public
records subject to inspection and copying by the public.). As CPD concedes, the memoranda

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recommend that CPD purchase certain cell site simulator equipment using public funds. CPD
Memo. at 13. Therefore, they cannot be exempt.
ii.

Deliberative Process

Contrary to CPDs assertion, the deliberative process exemption is not so broad as to


swallow up all preliminary memoranda in which actions were formulated. CPD Memo. at 13.
The exemption protects the opinions that public officials form while creating government
policy. Kalven v. City of Chicago, 2014 IL App (1st) 121846, 24. It does not apply to
factual material. Id. To be exempt, the information must reflect the give and take of the
deliberative process. Id. (citation omitted). To the extent the memoranda became CPDs final
decision on whether to purchase cell site simulators (which is not a government policy
anyway), they cannot be exempt. Id.; see also Am. Immigration Council v. U.S. Dept of
Homeland Sec., 905 F. Supp. 2d 206, 218 (D.D.C. 2012).
CPD offers no evidence to support its claim that the memoranda are preliminary or
used to formulate any actions. Even if it did, at most, this exemption would allow CPD to redact
the opinions themselves, not factual or other information. 5 ILCS 140/7(1) (When a request is
- 28 -

made to inspect or copy a public record that contains information that is exempt from disclosure
under this Section, but also contains information that is not exempt from disclosure, the public
body may elect to redact the information that is exempt.).

Factual information such as

descriptions of previous or planned use of the equipment (the very information the requests
sought) are not exempt under the deliberative process exemption.
iii.

Unique Investigative Techniques, ITAR, and Trade Secrets

For the same reasons CPD failed to establish that these exemptions apply to the court
orders and applications or manuals, so too has CPD failed to establish the exemptions as to the

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memoranda.
B. Request 2: All court orders for any instances in which police deployed IMSI
catchers
As discussed above with regard to Request Number 1, CPD has failed to prove any
exemption claims as to court orders or applications.
C. Request 3: All formal or informal policies, procedures, orders, directives, or
other such records that pertain to when, why, where, how and by whom
IMSI catchers may be deployed
As discussed above, MARTINEZ has prevailed with regard to CPDs admission, in
response to this litigation, that it has no written policies or procedures that pertain to when cell
site simulators may be used. As also discussed above, CPD has failed to establish any exemption
claims regarding the purchase justification memoranda that are responsive to this request.
D. Request 4: All records discussing the constitutionality of deploying IMSI
catchers
As discussed above, MARTINEZ has prevailed with regard to CPDs admission, in
response to this litigation, that it has no such records.

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E. Request 5: All records explaining what happens to data collected by


Chicago Police IMSI catchers
Given the Constitutional implications of cell site simulator use, it is implausible that CPD
has no policies or procedures that indicate what data can be collected or stored under what
circumstances, and as explained above, CPD has not shown that it has undertaken an adequate
search for these records. For example, CPD should be able to provide redacted versions of the
data it has collected so that the public can understand the general volume and frequency of such
data collection and storage (i.e., whether CPD collects data from a small number of targets or
from a large volume of people, including, for example, the subscriber IDs of every person in the

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vicinity of a protest much as it conducts other surveillance of political protesters). In fact, the
pen register statute requires CPD to keep such records. 18 U.S.C. 3123(a)(3)(A) (requiring
law enforcement to keep a record of the officers who installed the device, when it was installed,
the configuration of the device, and any information which has been collected by the device).
As discussed above, CPD has a history of illegal surveillance of protest groups and continues to
target them for intelligence operations, and CPD has failed to show that it undertook a reasonable
search for these or any records. The issues at stake in this case are far too important to accept
CPDs inadequate affidavits or arguments without providing MARTINEZ the opportunity to test
them fully.
VI.

CONCLUSION

The General Assembly and courts of this state have time and time again made clear that
information is crucial to a free society and the ability of the public to monitor government to
ensure that it is being conducted in the public interest and in compliance with Constitutional
rights. MARTINEZ respectfully asks the Court to uphold these principles and deny CPDs
motion to dismiss.
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RESPECTFULLY SUBMITTED,

____________________________
Attorneys for Plaintiff
FREDDY MARTINEZ

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PAGE 31 of 31

Matthew Topic
LOEVY & LOEVY
312 North May St., Suite 100
Chicago, IL 60607
(312) 243-5900
matt@loevy.com
Atty. No. 41295
July 2, 2015

CERTIFICATE OF SERVICE
This is to certify that on July 2, 2015, I served the foregoing Plaintiffs Response to
Defendants Motion to Dismiss on all counsel of record via electronic mail.
/s/ Matthew Topic

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